Here's How Some Lawmakers Want to Reform Federal Surveillance. Prepare to Be Disappointed

The backdoor, warrantless searches won't end, but will see new limits.


NSA chip
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A first look at a draft version of changes to Section 702 of the Foreign Intelligence Surveillance Act (FISA) reveals modest restrictions on how federal agencies can collect and access Americans' communications without a warrant.

The revisions, dubbed the USA Liberty Act of 2017, would require a court order to get access to these communications, unless the requests for access involve investigating terrorism or espionage. That narrows the "backdoor" the government has used to snoop on Americans without warrants, but it doesn't close really close it.

Civil rights and privacy rights groups have been fighting for changes, their efforts bolstered by Edward Snowden's revelations about the size and scope of domestic snooping.

Neema Singh Guliani, legislative counsel for the American Civil Liberties Union (ACLU), responded to the draft that this revision still leaves open potential surveillance abuses against American citizens:

"While the bill contains positive provisions that are an improvement over current practice, it falls short of what is needed to protect individuals from warrantless government surveillance under Section 702. Its most glaring deficiency is that it only partially closes the so-called 'backdoor search loophole.'

"The bill would still allow the CIA, NSA, FBI, and other agencies to search through emails, text messages, and phone calls for information about people in the U.S. without a probable cause warrant from a judge. Those worried that current or future presidents will use Section 702 to spy on political opponents, surveil individuals based on false claims that their religion makes them a national security threat, or chill freedom of speech should be concerned that these reforms do not go far enough.

One other positive reform in the bill: It would legislatively end the practice of drawing in communications that referenced or were "about" the subject of an investigation, rather than to or from a subject. The NSA had been accessing communications by Americans that mentioned a person they were investigating (without a warrant), even though they are not part of an investigation. Evidence shows they had been scooping up all sorts of communications to which they had no legal access.

The NSA decided to end this type of surveillance earlier in the year. This bill would codify an end to the practice until 2023.

Section 702 provides some of the authorizations the National Security Agency (NSA) and Central Intelligence Agency (CIA) use to snoop on foreign targets, be they potentially terrorists or other foreign agents. But Section 702 has also been used to secretly collect and snoop on communications by Americans, and the private information used for domestic crime-fighting, all without getting warrants.

Section 702 also expires this year, so Congress must act if they want to preserve it. The version being released right now is being pitched by members of the House Judiciary Committee as a compromise between those who want firm Fourth Amendment protections and those who want to keep the federal agencies' broad surveillance authorities.

As Dustin Volz at Reuters notes, this draft bill will not be the only proposal on the table. Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) are expected to introduce a version that would be stricter about demanding warrants to access Americans' communications. Sens. John Cornyn (R-Texas) and Dianne Feinstein (D-Calif.) are expected to introduce a version that does even less than the one detailed here.

The Trump administration wants no changes at all and wants Section 702 renewed permanently, even though President Donald Trump claims to have been inappropriately snooped on by the Obama administration. But it seems clear that Congress is not going to renew Section 702 as is, so we'll have to see which compromises win out.

Or, perhaps Congressional dysfunction could cause Section 702 to expire entirely. ReasonTV suggested Congress let Section 702 lapse, since it is so prone to surveillance abuses. Watch below, and listen to a discussion on federal surveillance authorities from South by Southwest earlier this year hosted by Reason here: